TRENDS IN THE USE OF IMPRISONMENT have been in custody; little clarity as to who is responsible for ensuring adherence to custody time limits; and a lack of mechanisms to identify when detainees have been held in excess of the custody time limit. In a recent ruling, the European Court of Human Rights found that Hungary had violated the right to liberty when it kept a man in pre-trial detention for over three years without properly assessing the reasons for extending his detention each time it was reviewed.66 A 2018 global report on children in pre-trial detention surveyed 118 countries and revealed that 26 per cent of these countries have no pre-trial detention limit for children; 43 per cent have a pre-trial detention limit that applies to children only; and 31 per cent have a generally applicable pre-trial detention limit that applies to both adults and children. The report concludes that a new international time limit should be introduced that restricts the amount of time children can spend in pre-trial detention to a maximum of 30 days.67 Some states operate a system of mandatory denial of pre-trial release for certain crimes. This is a particular issue in Mexico, where 40 per cent of the total prison population are held in pre-trial detention. The Mexican constitution already requires mandatory pre-trial detention in cases of murder, rape, kidnapping and several other crimes, and draft legislation is currently before parliament to widen this range of offences to include home burglary and possession of weapons.68 In Ghana, by contrast, levels of pre-trial detention fell from 30 per cent in 2007 to 12 per cent in 2018.69 A contributory measure to this was a Supreme Court ruling that made all criminal offences subject to bail.70 One tool that is used to address both overcrowding and pre-trial detention is the introduction of plea bargaining. Widespread in the US, the practice has increased significantly elsewhere around the world in recent years. The NGO Fair Trials reported on this in 2017 and found that there has been a 300 per cent increase in plea bargains worldwide since 1990.71 The same report also found that without adequate procedural safeguards, there are considerable concerns about its use and expansion: innocent people can be persuaded or pressured to plead guilty; easier convictions can encourage over-criminalisation and drive harsher sentences; there can be an inequality between the negotiating partners and a lack of transparency where ‘deals’ are done by prosecutors and defence counsels behind closed doors; and public trust in justice can be undermined.72 In New Zealand, the number of people held in pre-trial detention was reduced over a relatively short period of time during 2018, by introducing efficiencies to the system – such as having bail advisors in prisons who proactively work with new remand prisoners in order to support applications for electronic monitoring; providing bail support services at court hearings, including connecting people with alcohol and drug abuse programmes; and providing a mobile phone application for people on bail in order to provide them with updated information regarding their hearings and available support.73 RECOMMENDATION 04 Pre-trial detention should be used as a last resort and only where necessary and proportionate. Legal aid and assistance should be provided and, where monetary bail is used, this should be set according to the circumstances of the individual defendant. The use of non-custodial measures should be increased and states should develop effective systems to help ensure that detainees spend no longer in pre-trial detention than is strictly required by law. Sentencing Sentencing decisions are shaped by a complex mix of objectives. As well as punishment, these objectives include rehabilitation, the protection of society and deterrence. The severity and length of sentences imposed for similar crimes across the globe vary enormously, suggesting that the assessment of these objectives is interpreted very differently. Even within jurisdictions, the rationale for sentencing can vary from case to case and from judge to judge. There is some evidence to suggest that in many jurisdictions, sentences of imprisonment are getting longer – particularly for serious offences.74 Tougher sentencing practice arises through the interplay of several factors: an increasingly punitive climate of political and media debate about punishment; legislative changes; new sentencing guidelines; new precedents on sentencing; and perceptions about new or different patterns of offending. The public is often thought to favour a tough approach to sentencing, in which prison is viewed as the only ‘real’ punishment and is easier to understand than community-based sanctions. In practice, this assessment of public opinion may not always be accurate or up to date. Research demonstrates that when more information is provided to members of the public about a case, their opinions align more closely with the sentences actually imposed by the courts.75 A recent review of over 50 public opinion surveys and polls in the US found that there has been ‘a significant thaw’ in terms of punitiveness that could, over time, produce a paradigm shift towards prevention, rehabilitation and reintegration as policy objectives.76 Penal Reform International and Thailand Institute of Justice | Global Prison Trends 2019 Meanwhile, research from Italy found that increases in sentence length, either through mandatory minimums, sentence enhancements or more severe sentencing, are unlikely to have much deterrent effect when the baseline sentence is already long.77 Several countries have developed sentencing guidelines and/or established an advisory sentencing council or commission to assist in sentencing decisions. This is often done to address a perceived lack of confidence or fairness in the sentencing process or wide inconsistencies in sentencing practice. For example, in 2018 Scotland introduced sentencing guidelines for the first time, which set out ‘fairness and proportionality’ as core principles for sentencing and defined the purposes of sentencing as rehabilitation, protection of the | 13